One of the many wonderful provisions contained within S744, the bill recently passed by the US Senate, is a meaure that provides relief to children who “age out.” As things currently are, it is not uncommon for derivative beneficiary children to turn 21 or over by the time a visa number becomes available for their mothers or fathers, who are the principal beneficiaries. Unless these children can avail themselves of the Child Status Protection Act (“CSPA”), they are often out of luck and unable to immigrate with their parents. The parents, in turn, must come to the US without their adult children and file separate I-130s for them–and wait several more years before these children can come to the US–despite language in the CSPA that allows for retention of the original priority date (that is, the date assigned to the cases originally filed for them as the principal beneficiaries). The California Supreme Court recently interpreted the CSPA to allow for retention of priority dates in De Osorio v. Mayorkas, a pivotal decision with sweeping ramifications. The government appealed and The Supreme Court of the United States has decided to hear the issue.
The new bill, meanwhile, specifically addresses Retention of Priority Dates and clarifies that an aged out child may use the original priority date assigned to his/her parent’s case if the parent subsequently files a petition for him/her. The bill provides:
“For a petition originally filed to classify a child…if the age of the alien is determined…to be under 21 years of age or older on the date that a visa number becomes available to the alien’s parent who was the principal beneficiary of the petition, then, upon the parent’s admission to lawful permanent residence in the United States, the petition shall automatically be converted to a petition filed by the parent for classification of the alien…and the petition shall retain the priority date established by the original petition.“
Should this provision make it into a final comprehensive immigration bill that is passed by Congress and signed into law by the President, the original intent of the CSPA to reunite families and alleviate the harsh effects of the preference category backlogs will finally be honored and implemented with clarity.